Neosho Grocery Co. v. St. Louis-San Francisco Railroad Co

• Decision Date: 11 March 1922
• Citation: 238 S.W. 514,215 Mo.App. 57
• Parties: NEOSHO GROCERY CO. v. ST. LOUIS-SAN FRANCISCO RAILROAD CO
• Court: Missouri Court of Appeals

238 S.W. 514

215 Mo.App. 57

NEOSHO GROCERY CO. v. ST. LOUIS-SAN FRANCISCO RAILROAD CO

Court of Appeals of Missouri, Springfield

March 11, 1922

Appeal from the Circuit Court of Jasper County.--Hon. Grant Emerson Judge.

AFFIRMED.

Judgment affirmed.

Leo H Johnson and H. S. Miller for appellant.

W. F Evans and Mann & Mann for respondent.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

The plaintiff appeals from the action of the trial court in refusing to set aside an involuntary non-suit taken by plaintiff at the close of its case.

The cause of action is based on a collision which occurred in the State of Kansas at the station of Opolis, where one of plaintiff's huge automobile trucks was attempting to cross defendant's tracks and was struck and destroyed by one of defendant's passenger trains. Stating the case most favorably to plaintiff, it must be admitted, so far as a disposition of the case is concerned, that defendant was negligent in failing to give the statutory signals as this train approached this railway crossing. Both parties agree that the case must be decided on the law of Kansas governing such cases.

The defendant relies on defeating the action and in upholding the trial court's action by its plea of contributory negligence, urging that the case made by plaintiff under the law of Kansas it was guilty of contributory negligence as a matter of law and hence no recovery can be had, even conceding defendant's negligence.

The evidence shows that plaintiff was a wholesale grocer concern, selling its goods in towns along the Missouri and Kansas line, and that it delivered its goods by means of automobile trucks. On the day of the collision it started a truck load of its wares and merchandise out with two experienced truck drivers for the purpose of making deliveries. A boy some thirteen or fourteen years old accompanied them on this day, he going merely for the experience of the trip and having no duties to perform.

The two men placed in charge of this truck on the day of the collision were Archie Chase, twenty-three years old, and Arnold Tabb, another driver for plaintiff, twenty-seven years old. Tabb had been driving the truck but before reaching Opolis he had surrendered the wheel to Chase. The undisputed testimony is that the railroad runs north and south and the highway plaintiff's truck was on crosses it about at right angles. The plaintiff's truck was traveling west. The truck coasted down a hill toward the crossing, the clutch disconnected but the engine running. When it reached the bottom of the hill the truck was traveling twelve to fourteen miles an hour. Then it ran over a level stretch of road for some distance to the east right-of-way line of defendant's railroad, which was fifty feet east of the rails. When the truck entered the right-of-way it was still disconnected from the engine and had reduced its speed to six miles an hour. Chase, the driver, testified that just after entering the right-of-way he looked to the north for a train. He at that time was forty-five feet from the track and he testified that from the right-of-way line, which was fifty feet from the railroad track, he could see fifty or sixty feet north of the next crossing which was without question 400 feet north of the road he was traveling, making his vision of the railroad track unobstructed to the north, when he looked at the forty-five foot point, some 450 to 460 feet north of the crossing; that he then looked to the south and saw no train coming, and that he then released the clutch which turned the power on the car, running in high and increased the speed from six to eight miles an hour. The grade up to the rails from the right-of-way was several feet. He then looked no more to the right until Tabb, who was on the seat beside him, told him there was a train approaching from the north. This was when his truck had reached a point fifteen feet from the rails. The evidence shows that all was done that could be done to stop the truck but that it went on the track and stopped. He, Tabb and the boy accompanying them jumped and were uninjured, the truck and the groceries were completely destroyed.

Tabb's testimony corroborated Chase's in practically every particular except that he testified that from the edge of the right-of-way a person looking north could see a train 150 to 200 feet north of the next crossing, which would make a vision of the track north at the east right-of-way line, according to his version, about 550 to 600 feet away from the crossing over which they were going.

There is one point upon which all of plaintiff's witnesses agree, and that is that the train was running from sixty to seventy miles an hour, and that it never slackened its speed from the time those in the truck saw it until it collided. Also, the two drivers say that the truck was running six miles an hour until it was within thirty to thirty-five feet of the railroad track, when the clutch was let in and the speed picked up to eight miles per hour. When the train was discovered, and the truck was fifteen feet of the rails, then the brakes were thrown on the truck and it ran and skidded to the railroad crossing where it was stopped and struck by the oncoming train.

All of the Kansas cases to which our attention has been called hold that where the physical facts show that a train was in sight, then regardless of what may be testified to about looking and seeing no train the law holds the one whose duty it is to look as having seen what was perfectly apparent and unobstructed.

Giving plaintiff the benefit of the most favorable evidence, which we must in this case, the train was traveling about 100 feet per second and under no phase of the evidence under eighty-eight feet per second. If it was traveling 100 feet per second, then it was going ten feet for every one foot the truck was traveling. Under the evidence the highest average speed the truck traveled from the forty-five foot point to the middle of the railroad track was not over seven miles per hour. If this is true, then the train which, under all the evidence, did not slacken its speed to the point of collision could not have been over four hundred fifty feet from the crossing when the driver of the truck looked north at the forty-five foot point, and he testified from a point fifty feet from...